Secrets of the Collegium- Antithesis of People’s Right to Know

The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries.

The Collegium system which takes a call on the appointments and transfers of judges in the higher judiciary is once again in the news. In this age of 24×7 connectivity, it is getting increasingly difficult for it to ward off valid criticism over its functioning. Supreme Court (SC) of India in State of U.P. vs. Raj Narain (1975) 4 SCC 428, observed:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

The SC collegium comprising of Chief Justice of India and its four senior most judges is perhaps the only institution which appears to have shown utter contempt to its own observation in Raj Narain case. The institution of collegium, as of now, is beyond public scrutiny. Secrecy is the norm. One may hazard to call it a Five Judges Private Club. Not only its functioning is opaque but even its decisions have at times intrigued one and all.

Justice J. Chelameswar in the National Judicial Appointments Commission (NJAC) verdict mentioned that the records related to collegium’s proceedings are absolutely beyond the reach of any person including the judges of SC not lucky enough to be the Chief Justice of India. Such a state of affairs does not auger well for Indian judiciary, and especially the SC, which otherwise holds an exalted place in the eyes of Indian public. People rightly look at it with awe and admiration. But the obstinacy surrounding the affairs of the collegium is taking its toll.

Though the SC bench in NJAC case struck down the 99th Constitutional Amendment Act that attempted to tinker with the collegium system, the majority, however, opined that it needed to improve its functioning. Unfortunately, from the day said judgment was pronounced; it appears that no stone has been left unturned to resist transparency and accountability. The proverbial carpet cannot accommodate any more dust. The collegium system is now facing huge credibility crisis. Numerous recent decisions have further contributed to it.

The recommendations of the collegium to transfer Justice M R Shah of Gujrat High Court, and the other one from the Delhi High Court and subsequent withdrawal of the recommendations has led to allegations of collegium succumbing to extraneous pressures from the executive. The government sat on the recommendations of collegium in these two cases for more than a year which prompted the then CJI, T S Thakur to threaten withdrawal of judicial work from the two judges while hearing a case on the judicial side. CJI Thakur, in the meantime, retired and the collegium headed by the former Chief Justice J S Khehar apparently gave up the matter. Ultimately, the collegium had to withdraw its earlier recommendation of transferring the two judges.

In yet another case, Justice K. M. Joseph, serving Chief Justice of Uttarakhand High Court, sought his transfer from Uttarakhand to Andhra Pradesh High Court. Collegium acceded to his request and recommended it to the Government. However, even a year after the recommendation was made, his transfer is still ‘under consideration’ of the Central Government. To add to the woes, in February 2017, Justice Chelameswar, questioned the decision of the collegium, of which he himself is a member, to not elevate the highly competent Justice K. M. Joseph to the top court.

The recent controversy surrounding the ‘proposed’ transfer of Justice Jayant Patel of Karnataka High Court to Allahabad High Court followed by his resignation has sparked a fresh debate and brought the collegium system under scanner once again. The Gujarat High Court Advocates Association (GHCAA) has vehemently condemned the move of collegium in transferring Justice Patel. It has also decided to challenge the same before the Supreme Court.

Nobody knows the true reasons for this transfer at a time when Justice Patel was supposed to discharge duties of acting Chief Justice of Karnataka High Court in the next month. GHCAA seems in no mood to let this matter rest and therefore it has written to the Supreme Court, Allahabad High Court and Karnataka High Court seeking details of notes of recommendation made by the collegium pursuant to Justice Patel’s proposed transfer. Justice Ruma Pal once called collegium the best kept secret in India.

Now, the question crops up, what is the way out? The executive has very little role in the appointment and transfer of judges in the higher judiciary. Yet, it appears to be successful in pulling the strings to the extent that collegium at times had to withdraw its recommendations. The executive’s audacity to sit over the recommendation of the collegium for years together is not a healthy sign and grossly undermines independence of the judiciary in a vibrant democracy like India.

It may be noted that there is a stay on the providing of information related to collegium and CJI office, by two judges’ bench of the Supreme Court in CPIO, Supreme Court of India v. Subhash Chandra Agarwal. In this case Agarwal, the RTI applicant, sought a copy of complete file (s) (only as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities.

On 26.11.2010, two judge bench of the SC while staying the decision of a division bench of the Delhi High Court bringing office of the CJI under the RTI Act, 2005, framed the following questions of law for the larger bench:

-Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?

-Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?

-Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?

After six years, the case came up before the bench of three judges on 17.08.2016 which in turn referred it to a Constitution bench. Now more than a year has passed, nothing has moved as the bench is yet to be constituted.

Transparency being an aspect of rationality, its need is felt even more acutely in issues pertaining to appointments. As of now, proceedings of the collegium are absolutely opaque and yet the former CJIs, on the administrative side, have treated this case unworthy of being given priority. I hope that the present CJI constitutes a bench that may hear and decide on this case of immense national importance. The decision may, hopefully, remove the shroud of secrecy which presently surrounds the proceedings of the collegium.

Let there be a debate in an open Court on the above listed issues framed by the two judge bench. It is high time the SC respects the verdict in Raj Narain case. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries.